Vermont Bar Journal, Vol. 40, No. 2 - Page 32

Rhetoric Revisited ferent, yet have something in common. For example: “On the final examination, several students went down in flames because they neglected to study.”14 The sentence implies an evocative, albeit perhaps overstated, comparison between an airplane being shot down and a student failing a final examination. Metaphor’s cousin, simile, is an explicit comparison between two things that are fundamentally different, yet have something in common.15 The explicitness of the comparison is reflected in the presence of “like” or “as” in the sentence. The following sentence illustrates a simile: “Like an arrow, the prosecutor’s question went directly to the point.” But less familiar tropes are often especially powerful. One is “metonymy,” which substitutes some attributive or suggestive word for what is actually meant, such as “the Crown” for the British state or “the brass” for military officers.16 Journalists who cover international relations use metonymy regularly when they write that “Washington and Tehran negotiated a nuclear nonproliferation treaty” or “Washington has failed to approve the Kyoto Protocol.” Another useful trope is “antanaclasis,” the repetition of a word in two different senses.17 For example, Benjamin Franklin said: “If we don’t hang together, we’ll hang separately.”18 These examples show that attention to rhetoric, particularly arrangement and style, can help the modern lawyer to write briefs and memoranda that persuade by appealing to both the head and the heart of the reader. The remainder of this article will show how Justices Black and Brennan used arrangement, with a pinch of style, to achieve that end. Hugo Black: Writing for the Common Person Hugo Black’s writing stands out for its clarity and simplicity. Black wanted his prose to be accessible to ordinary people so they could understand and appreciate the constitutional protections they enjoyed. He thus avoided complicated language, preferring a conversational style that frequently included “I” or “me.” Black’s opinions were not dull, though; he knew how to enliven them with vivid imagery and figures of speech. His best opinions were also models of storytelling and rhetorical arrangement. The first paragraph of Black’s majority opinion in Patton v. Mississippi, in which the Court overturned the conviction of a black man because blacks were excluded from jury service, underscores the clarity of his prose.19 The petitioner, a Negro, was indicted in the Circuit Court of Lauderdale County, Mississippi, by an all-white grand jury, charged with the murder of a white man. He was convicted by an all-white 32 THE VERMONT BAR JOURNAL • SUMMER 2016 petit jury and sentenced to death by electrocution. He had filed a timely motion to quash the indictment alleging that, although there were Negroes in the county qualified for jury service, the venires for the term from which the grand and petit juries were selected did not contain the name of a single Negro.20 The first paragraph concludes by noting Lauderdale County’s history of excluding blacks from juries, after which the second paragraph identifies the particular question before the Court. In the face of the foregoing the trial court overruled the motion to quash. The Supreme Court of Mississippi affirmed over petitioner’s renewed insistence that he had been denied the equal protection of the laws by the deliberate exclusion of Negroes from the grand jury that indicted and the petit jury that convicted him. We granted certiorari to review this serious contention.21 A clearer identification of the facts of a case and the resulting legal question on appeal is difficult to imagine. Justice Black’s opinion in Patton reflects his talent for arrangement; like the ancient rhetoricians, he knew that a persuasive discourse begins with a clear, compelling introduction, and he surely crafted one in Patton. Black was equally adept at explaining his reasoning, as the following excerpt from his majority opinion in Gideon v. Wainwright shows.22 In Gideon, the Court required states to appoint counsel for indigent defendants charged with felonies. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the wide-spread belief that lawyers in criminal courts are necessities, not luxuries.23 This passage succeeds, primarily because it articulates what ordinary people know: litigants hire lawyers if they can afford to do so, because legal representation is necessary in modern litigation. In felony cases, therefore, representation should not be limited to those who can pay. Still, well-placed figures of speech – anaphora in the third sentence, and antithesis in the last sentence – add a dollop of style to the passage’s effective arrangement.